Legal Framework of the Advisor of the Court for Children in Malaysia: An Analysis
Norazla Abdul Wahab1*, Nur Zulfah Md Abdul Salam1, Hammad Mohamad Dahalan1
1 Department of Law, Faculty of Syariah & Law, Kolej Universiti Islam Antarabangsa Selangor (KUIS), Bandar Seri Putra, Kajang, Selangor, Malaysia.
*Corresponding Author: [email protected]
Accepted: 15 March 2021 | Published: 1 April 2021
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Abstract: Section 11 of the Child Act 2001 provides that the advisor of the court for children has the role of advising the magistrate in giving orders to the child who is in conflict with the law and if necessary to advise the parents or guardians of the child. However, this is the only provision relating to Children Court advisors in Malaysia. In fact, the provision is too general and does not explained on the mechanism of execution of duties of the Children Court advisors, their appointment’s criteria as well as the training and module provided for them. Thus, this article aims to identify the legal frameworks of the Advisor of the Court for Children in Malaysia in particularly the jurisdiction, mechanism of execution of duties, the appointment’s criteria, modules and training involved. An analysis will be made of legal documents and academic journals. Semi-structured interviews also be conducted with the Social Welfare Department (JKM) of Ministry of Women, Family and Community Development (KPWKM) and the Legal Affairs Division (BHEUU) of Prime Minister's Department (JPM); the government bodies that are related with the Children Court advisors in order to obtain relevant information for this study. The research suggests a legal framework for the Children Court Advisor in Malaysia. This study is significant in improving the function of Children Court Advisors in assisting Magistrates in Malaysia.
Keywords: Children, Courts for Children, Advisors, Criminal Justice System. Juvenile Justice System
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1. Introduction
The establishment of the Court for Children is originated from Juvenile Court which has been introduced since 1947 through the Juvenile Court Ordinance. The court was established as to hear criminal cases that committed by a child (person under the age of 18) and young person (Farah Nini Dasuki, 2007) who is defined as a person aged of 14 but below 18. In 2002, the Court for Children has been established in accordance with the provisions of the Child Act 2001 which aim to provide legal protection to the children whether they are brought to the court as offenders or victims of criminal acts of the other persons (Farah Nini Dasuki, 2007). Some criminal procedures regarding child offenders such as charges, bails, trials and Orders (sentences) have been explained in the Parts IV and X of the Child Act 2001. It is in line with Articles 40 and 37 of the UN Convention on the Rights of the Child (UNCRC) as regards to the administration of juvenile justice.
Basically, this Court for Children has civil and criminal jurisdiction (Farah Nini Dasuki, 2007).
The criminal jurisdiction of the Court for Children as provided in Section 11 (5) of the Child Act 2001 is to adjudicate all criminal cases committed by children other than cases sentenced
with the death penalty (Aminuddin Mustafa, 2016; Farah Nini Dasuki, 2007 & Sarirah Che Rose, 2011). Whereas its civil jurisdiction is to hear all applications related to the protection and rehabilitation of the children (Farah Nini Dasuki, 2007).
As regard to the composition of the court, Section 11 (2) of the Child Act 2001 provides that apart from the Magistrate who gives orders to child offenders, there are two court advisors who will assist the Magistrate for that. These court advisors are appointed by the Minister of the Prime Minister's Department as stated in section 11 (3) of the Child Act 2001. However, section 11 itself is too general and was the only provision related to the court advisor. Furthermore, there are no other legal provisions, regulations or any guidelines are discussing on the mechanism of execution of duties of the court advisors, their criteria’s of appointment, training, modules and others.
Thus, this article aims to identify the legal frameworks of the advisor of the Court for Children in Malaysia particularly the jurisdiction, mechanism of execution of duties, the appointment’s criteria, modules and training involved. This is to improve the existing legal framework related to the court advisor who is also involved in the children criminal justice system in Malaysia.
2. Literature Review
There are not so many literatures as regards to the children court advisors comparing to any other officers working with the children in Malaysia such as probation officers or protector of the child. Farah Nini Dasuki (2007) has discussed on the history and development of the Children Court advisor since the establishment of the juvenile court at the year of 1947 until the formation of the Court for Children in 2002.
Singapore is one of the other countries that practices the same whereby the children court advisors are appointed in order to advise the magistrate in juvenile criminal justice system (S.
Anuradha, 2012). According to Section 32 of the Child and Young People Protection Act of Singapore, the Magistrate has a broader role than the advisory panel whereby he is given flexibility in determining a case individually or with only one advisor to expedite the case (S.
Anuradha, 2012). In fact, the magistrate handles most cases independently and the court advisors only participate in the final stages of those cases (S. Anuradha, 2012). Furthermore, section 32 (3) provides the interventions and opinions of the court advisors were only requested during the final phase of the investigation and limited to the children’s background, school records and other relevant matters (S. Anuradha, 2012).
This situation is different with Malaysia whereby the child court advisor must attend the whole court proceeding and one of them must be a woman according to section 11(2) and (3) of the Child Act 2001. Whereas in the Juvenile Court of India, nothing mentioned about the child court advisor but the two social workers which one of whom must be a woman as per statutory provisions shows that they have similar function as Malaysian Children Court advisors. They are required to sit and decide matters together with a Magistrate as a Bench of Magistrates right from the inquiry stage to the disposition stage (S. Anuradha, 2012). Furthermore, they are also play more active role compared to Malaysian and Singapore’s Court for Children’s advisor.
3. Methodology
This study uses qualitative and library research methods as well as interviews. An analysis has been made on academic journals and some legal documents such as the Child Act 2001 and
Juvenile Court Act 1947. Semi-structured interviews were also conducted with the Department of Social Welfare (JKM) of Ministry of Women, Family and Community Development (KPWKM) and Legal Affairs Division (BHEUU) of Prime Minister's Department (JPM), the bodies who directly involved with the advisors of the Court for Children. This is to obtain information related to the jurisdiction and mechanism of execution of duties, appointments and training of court Advisors which are mostly not available in the related documents.
4. Discussion
Existing Legal Framework of the Advisor of the Court for Children
Section 11 of the Child Act 2001 is the sole provision of the children court advisors which only describes the functions, the body that makes the appointment, the appointment of women as an advisor and their position in the composition of MBKK as follows:
(2) A Court For Children shall consist of a Magistrate who, in the exercise of his functions as a Court For Children except when making an order under subsection 39(4), 42(4), 84(3) or 86(1), as the case may require, shall be assisted by two advisers to be appointed by the Minister from a panel of persons resident in the State.
(3) One of the two advisers mentioned in subsection (2) shall be a woman.
(4) The functions of the advisers are— (a) to inform and advise the Court For Children with respect to any consideration affecting the order made upon a finding of guilt or other related treatment of any child brought before it; and (b) if necessary, to advise the parent or guardian of the child.
But there are several elements that need to be considered as legal framework for Children Court advisors which covers jurisdiction, mechanism of execution of duties, criteria and appointment, training and modules.
Jurisdiction
Sections 11 (2) and (3) of the Child Act 2001 stipulate that the composition of Court for Children consists of a Magistrate and shall be assisted by two advisor appointed by the Minister and one of them shall be a woman. While Section 11 (4) explains the function of Court for Children advisor as advising the court or Magistrate in giving orders to child who is in conflict with the law and if necessary to advise the parents or guardians of the child. However, this section only describes the functions, the body that makes the appointment, the appointment of women as the Court for Children advisor and its position in the composition of the court.
Although the advisor has a role to advise the court but it does not bind upon Magistrate (Farah Nini Dasuki, 2007; Muhammad Ramzee). However, section 90 (18) of the Child Act 2001 provides that the Magistrate needs to record the reasons why he did not agree to accept the advice or opinion of the advisor. Furthermore, when a child offender is tried at the High Court, there is no requirement for a judge to be assisted by a court advisor (Sarirah, 2011). Perhaps due to the maturity and experiences of a High Court’s judge, the reliance on the advice of a court advisor is not required. Although section 117 of the Child Act 2001 allows the High Court to carry out its functions in accordance with the Criminal Procedure Code (Sarirah, 2011) perhaps in the case of involving children, the provisions under the Child Act 2001 will be taken into account. Thus, it shows that the function of the Children Court advisor is recognized in the Court for Children and other Subordinate Courts but limited to the High Court.
Mechanism of Execution of Duties
Basically, the Children Court advisors will be involved throughout the proceedings of the case.
The court advisors will submit their views and advice upon requested by the Magistrate (Informant 3, 2020). If necessary, the advice can be made directly to the parents or guardians of the child (Informant 3, 2020). In order to do that, they will be provided with a report prepared by the probation officer a few days in advance before the child case trial (Informant 3, 2020).
Section 90 (13) of the Child Act 2001 states that this report should contain information on the child's behavior, child's background, school and medical records which are to be considered by the court advisor when giving advice or opinion to the Magistrate. It would help the Children Court advisor to participate actively in the court (S. Anuradha, 2012).
Among the common advices given by Children Court advisor are related to the role and involvement of the parents and guardian to the well-being of children, parenting’s skills, the children's education, future career training as well as religious and spiritual matters (Informant 3, 2020). Basically, there are no guidelines or manuals regarding the implementation and monitoring of the duties of Children Court advisors but they are still bound by existing court rules (during the proceedings) and the provisions of the Child Act 2001 (Informant 3, 2020).
Criteria and Appointment
Among the criteria of appointment as Children Court advisor are as follow:
i) Malaysian citizen;
ii) Not less than 40 years old and not more than 75 years old;
iii) Academic qualification at least SPM / MCE / SPMV;
iv) Fluent in speaking and can write in Bahasa Malaysia and English;
v) Have good health;
vi) Not bankrupt;
vii) Government or private retirees who are active and knowledgeable in aspects of child development and welfare;
viii) The applicant is a resident in the area where the location of Court for Children is located;
ix) Only government or private retirees are allowed to apply;
x) Willingness to serve in Court for Children at any time required for a period of two years;
xi) A person who is disciplined and highly committed.
(https: https://online.jkm.gov.my/ke membership-penasihat-mahkamah & (Informant 3, 2020).
Social Welfare Department (JKM) of Ministry of Women, Family and Community Development (KPWKM) is the body who is doing the selection and screening of the Children Court advisor. Whereas Legal Affairs Division (BHEUU) of the Prime Minister's Department (JPM) will do the appointment of the Children Court advisor and the appointment letter will be issued by Minister of Prime Minister's Department.
The application as the Children Court advisor can be made through any district social welfare office by filling the prescribed form. Then, the applicant needs to send the application form to the district social welfare office. The Magistrate or district social welfare officer will give a recommendation of appointment whether to support or to reject the application of the applicant.
The completed application form of the proposed Children Court advisor together with the supporting documents will be sent by the district social welfare office to the State social welfare office and it will be extended to the Enforcement Division of JKM headquarter in Putrajaya for an endorsement.
Next, the Enforcement Division will review the candidate's bankruptcy status with the National Insolvency Department. Upon confirmation of no bankruptcy status, the application form is submitted to BHEUU, JPM. Then, BHEUU will submit the list of proposed applicants to the Minister in the Prime Minister's Department for approval. Upon approval, the letter of appointment will be issued to the successful Children Court advisor (Informant 3, 2020).
Basically, the term of appointment of Children Court advisors is for two years and it can be renewable. But it depends on the performance of the court advisors themselves. If the court advisor is not committed of doing his or her duty for example by not attending the case trial as scheduled, he or she will no longer be nominated as Children Court advisor (Informant 3, 2020).
Although only the minimum requirements are required for the appointment of the Court for Children advisor but the advisor must be someone who has credibility and qualified to advise the court (Farah Nini Dasuki, 2007). Among the important criteria that needs to be considered in the selection of Court for Children advisor is to have a work-related background involving children (Farah Nini Dasuki, 2007). A community member or the non-governmental organizations (NGO)’s activist are among those who can be considered for appointment as Children Court advisor (Farah Nini Dasuki, 2007). Furthermore, having knowledge in child psychology are also an advantage for Children Court advisor especially when dealing with the children's issues. In India, it stipulates that Children Court advisor needs to have a background in Psychology (S. Anuradha, 2012).
Training and Modules
In 2013, JKM in collaboration with the Faculty of Law, University of Malaya has developed a court advisor module for children. The contents of the module include the legal system in Malaysia, court procedures for children, the role of Court for Children advisors, Child Act 2001 and its Orders, court ethics, and mock trial (Informant 3, 2020). It is suggested that the module needs to emphasize on the comprehensive understanding and training related to Child Act 2001 (Farah Nini Dasuki, 2007). In addition, the content of this module needs to be updated taking into consideration the latest amendment of Child Act 2001, the Penal Code, and the enactment of new law such as the Sexual Offenses against Children Act 2017. The Children Court advisor also need to be exposed to the current social issues related to the children or types of crimes that committed by the child offenders in order to give better understanding and appropriate advise to the magistrate.
As far as a training is concerned, it is conducted by JKM in the form of talks, group sessions and discussions as well as mock trial. However, there is no ruling on the frequency of training because it depends on the state social welfare office or at least once upon the appointment of a new Children Court advisor (Informant 3, 2020). However, in recent years, the training could not be held due to financial constraints (Informant 3, 2020). But a briefing is conducted during the handing over of the appointment letter as Children Court advisor. Basically, the training conducted is still not enough and needs to be implemented regularly, especially for the newly appointed Children Court advisor (Informant 3, 2020).
5. Conclusion
The composition of court’s advisor in the Court for Children is consistent since the Juvenile Court Ordinance 1947. Certainly the role of the Children Court advisor is significant in the juvenile justice system in Malaysia. In this regard, some improvement are suggested especially
in terms of jurisdiction, mechanism of execution of duties, criteria and appointment as well as training of Children Court advisor. Although the advice of Children Court advisor does not binding, but with a proper manual and periodic training will enable Children Court advisor to function more effectively in the juvenile justice system.
References
Aminuddin Mustaffa. 2016. Diversion under Malaysian Juvenile Justice System: a Case of Too Little Too Late? Asian Criminology. Jil 11: 135-151.
Farah Nini Dasuki. 2007. Perkembangan Mahkamah bagi Kanak-kanak di Malaysia, Pentadbiran Keadilan-Artikel Terpilih. Siri Perkembangan Undang-undang di Malaysia.
Bil 3, Dewan Bahasa dan Pustaka. Kuala Lumpur.
Informant 3. Kerangka Penambahbaikan Penasihat Mahkamah Dalam Sistem Keadilan Jenayah Kanak-Kanak Di Malaysia. Jabatan Kebajikan Masyarakat (JKM), Kementerian Kementerian Pembangunan Wanita, Keluarga. Temubual 8 September 2020.
Informant 6. Kerangka Penambahbaikan Penasihat Mahkamah Dalam Sistem Keadilan Jenayah Kanak-Kanak Di Malaysia. Bahagian Hal Ehwal Undang-undang (BHEUU), Jabatan Perdana Menteri. Temubual 30 September 2020.
Muhammad Ramzee Abdul Razak. The Juvenile Justice System In Malaysia. 164th International Training Course.
S. Anuradha, 2012. Juvenile Justice: Critically Juxtaposing The Models In India And Singapore. Working Paper Series No.028. Singapore: Asia Law Institute.
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Wafa Yusof. Kedudukan Kanak-Kanak Yang Berkonflik Dengan Undang-undang dan Perundangan Jenayah Di Malaysia.
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Statutes Child Act 2001
Juvenile Court Act 1947 International Convention
UN Convention on the Rights of the Child (UNCRC)
